ISTA/NEA Securities Fraud Litigation Timeline

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1 ISTA/NEA Securities Fraud Litigation Timeline 1985 ISTA Financial Services Corporation, under former Washington Township Education Association president Garrett Harbron creates ISTA Insurance Trust to manage health care and disability liabilities ISTA Insurance Trustees adopted an investment policy allowing up to 20% of alternative investments defined as managed futures and hedge funds and specifically disallowed Trust assets to be placed in any security not publicly traded ISTA staff is advised by financial managers that more than 93% of the Trust s assets are placed in alternative investments April 28, 2009 ISTA Executive Director Dick Darko issues statement to membership claiming ISTA Insurance Trust is well-managed, and provides state-level union negotiators with strict instructions to keep schools from making any changes to participation up to and including offering legal assistance to force arbitration against any school corporation that tries to back out of the ISTA Insurance Trust. Our product has been one of the least expensive, best administered, long term disability products in the country. - ISTA Executive Director Richard Darko, April 28, 2009 May 8, 2009 Insurance Commissioner James Atterholt issues a final order regarding the ISTA Insurance Trust, which had been operating a health-insurance program providing health coverage to Indiana school districts. The Insurance Commissioner s order provided that the ISTA Insurance Trust cease operation of its health-care plan and would transition it to United Healthcare. 1

2 Further Department of Insurance review reveals that ISTA Insurance Trustees had elevated to 88% the amount of the fund that could be invested in alternative investments up from the originally planned 20%. "It s fair to say I wrote [that memo] in an attempt to avoid a run on the bank." Richard Darko, May 15, 2009 "What's equally as troublesome is that they are running around and pressuring their membership to stay in this plan that they've not disclosed at all as even being in any trouble. That, to me, is unconscionable." Insurance Commissioner Jim Atterholt, May 15, 2009 May 20, 2009 NEA takes over ISTA due to insolvency of ISTA Insurance Trust and appoints Ed Sullivan sole trustee. The National Education Association has taken over its troubled Indiana affiliate after problems with its insurance trust landed the teachers union in financial trouble and spurred investigations. Associated Press, May 20, 2009 The people overseeing the ISTA Insurance Trust had no background in investments or insurance. [They] tapped educators for all the positions on the trust s board Indianapolis Business Journal, May 26, 2009 June 3, 2009 ISTA announces it is ending its long-term disability program. It is unclear if it will continue to pay benefits to the 650 employees. State insurance regulators say individual school districts could be responsible for those payments. These people are on disability they have nothing after July. How do they pay their bills? Insurance Commissioner Jim Atterholt, June 3, 2009 June 5, 2009 Indianapolis Public Schools says it will not pay long-term disability benefits for the more than 100 employees it has covered under ISTA's program. 2

3 June 8, 2009 ISTA reverses course and agrees to pay all long-term disability benefits. Soon after, it lays off employees and sells its Downtown office building to a wholly-owned subsidiary of NEA, NEA Properties LLC. On the same day, a group of teachers covered by the long-term disability program files a class-action lawsuit against ISTA. October/November 2009 NEA-appointed ISTA executive Edward Sullivan offers teachers at schools effected by Trust mismanagement lump sum payments of 25 cents on the dollar lost (or structured annual payments of 33 cents on the dollar lost) to quell possible claims against ISTA. May 5, 2009 Securities Commissioner opens an investigation into the ISTA Insurance Trust. December 2, 2009 Securities Commissioner files suit in Marion County Superior Court against ISTA Entities 1 and the National Education Association. Complaint alleges the following: ISTA entities violated the Indiana Securities Act by offering and selling an unregistered security in the form of participation in the ISTA health insurance program. The program, marketed to Indiana school The latest evidence indicates that ISTA is now offering these Indiana school corporations pennies on the dollar in an effort to wipe away their liability. - Indiana Secretary of State Todd Rokita, December 2, 2009 districts, allegedly permitted the school districts to accumulate surpluses ( CSR ) which would be held as reserves and invested on their behalf by ISTA. The surplus and earnings could then be used to reduce future health costs or other schooldistrict expenses. Participating school districts had received falsified reports indicating accumulated surpluses and earnings totaling in excess of $27,000,000. In reality, due to poor investment decisions and mismanagement by the ISTA trustees, there were no reserves for the reported CSR balances. The NEA is party to the lawsuit because of its status as the entity now running ISTA. 1 ISTA Entities includes ISTA Insurance Trust, ISTA Administrative Services Corporation, ISTA Financial Services Corporation, ISTA Welfare Benefit Trust) 3

4 Discovery is conducted in the federal litigation. Approximately 1,000,000 pages of documents are reviewed and more than 20 depositions are conducted. April 28, 2010 United States District Judge Sarah Barker denies the defendants motion to dismiss the case in its entirety. October 27, 2010 The Securities Commissioner institutes administrative proceedings against David Karandos, the broker responsible for the ISTA Insurance Trusts investments, Morgan Stanley & Co., the employer of Mr. Karandos, and UBS, former employer of Karandos, based on the mismanagement and inappropriate investment of the Trust s assets April 13, 2012 ISTA/NEA file a motion for summary judgment, again arguing that the ISTA Insurance Trust health arrangement did not constitute a security under Indiana law. The NEA files a separate summary judgment motion arguing that its role with regard to the UniServe directors was legally insufficient to hold the NEA liable. May 18, 2012 Settlement conference held by Magistrate Judge Debra McVicker Lynch. No settlement is reached. June 22, 2012 Summary judgment motions are fully briefed. Pike said the lawsuit is "a significant concern" but expressed confidence ISTA would prevail. "We don't believe there will be any possible way the state can prove their case." ISTA Executive Director Brenda Pike, February 2, March 26, 2013 Judge Sarah Barker Evans denies both the summary judgment motion filed by the defendants and the NEA s separate motion for summary judgment. In a 30-page ruling, the judge finds that there are triable 4 Ultimately, the most troubling aspect of the ISTA s chief argument (to wit, that the Trust arrangement was in no way an investment ) is the incorrect characterization of the facts upon which it relies. U.S. District Judge Sarah Evans Barker, March 26, 2013

5 issues of fact as to the health arrangement s status as a security under Indiana law, and that the NEA s relationship with the ISTA Uniserve directors was sufficient to hold the NEA responsible for their actions in the offer and sale of an unregistered security under Indiana law. March 27, 2013 The court sets the case for trial beginning October 28, April 9, 2013 The NEA moves the court for reconsideration of its order denying the NEA s motion for summary judgment, arguing that the court relied on evidence which was not properly before the court. April 17, 2013 Judge Barker denies the NEA s motion for reconsideration, characterizing its argument as both puzzling and preposterous, given that the evidence challenged by the NEA was put in the record by the NEA itself. June 19, 2013 A second settlement conference before Magistrate Judge Lynch is set for July 3, July 3, 2013 Following a full day of settlement negotiations, the parties reach an agreement in principle to settle the matter for a payment of $14,000,000 by the ISTA Insurance Trust to the Secretary of State, with all funds to be distributed to the 27 affected school districts. August 13, 2013 Parties of the lawsuit agree to a $14 million payout from ISTA/NEA and continue negotiating language for the release. Drafts of the settlement terms and release are submitted to school corporations for their review. Final allocations of monies recovered are calculated. This is the right results for schools. While $14 million is a significant amount, it does not cover ISTA s nor the NEA s full financial obligation to the school corporations. Indiana Secretary of State Connie Lawson, August 13, 2013 ISTA spokesman Mark Shoup said settling the state s lawsuit is an attempt to put it behind us. Indianapolis Star, August 13,

6 September through November 2013 Participating school corporations and their boards meet and approve terms of the settlement and sign all appropriate release documents. December 2, 2013 Final release is forwarded to ISTA/NEA. ISTA/NEA has ten days to submit funds to the SOS. Final dismissal of lawsuit will be filed after money has been distributed to school corporations. 6